An election year is not the most promising time to expect congressional action on major legislation, regardless of which party is in charge. That especially applies this year. Senators and representatives up for re-election are always reluctant to take tough positions on important issues that could anger constituents, even in off-years, and reluctance becomes fear in presidential election years when a retiring president pushes hard for legacy-making initiatives.
The death of Supreme Court Justice Antonin Scalia emphasized the dilemma when Republican leaders declared within hours of his death that the Senate wouldn’t act on whoever President Obama put forward to replace him. They want the next president to choose the replacement, which in effect gives voters the opportunity to have a hand in making the choice, since a Republican president and a Democratic president would offer very different choices. Slowing down, sidetracking or declining to confirm judicial nominees in a president’s final year is not unusual. Democrats do it, Republicans do it. Federal judges, including Supreme Court judges, are appointed for life and senators of an opposing party are not eager to let a soon-to-depart president get his way.
Controversial legislation as well as judicial appointments defer to politics in election years, and 20 times since 1940 Congress has returned after an election for a lame-duck session. Many congressmen, as well as the usual affliction of lobbyists, are eager for a lame-duck session this year so Congress can enact far-reaching trade legislation and spending bills that few sitting congressmen are brave enough to consider just before facing their constituents. If the Republicans lose the presidential vote some Republican senators might be tempted to confirm Merrick Garland for the Supreme Court lest the new Democratic president — presumably Hillary Clinton or Bernie Sanders — appoint someone who pleases them less.
The Senate Republican leader, Mitch McConnell, says that won’t happen, but much else could. Wary conservatives in the House, and many who worked through lame-duck sessions in the past, are demanding binding promises from their leaders that they won’t convene such a session this year. Edwin Meese, the attorney general in the Ronald Reagan administration, has invited a dozen or so conservative activists to join him in signing a letter to Sen. McConnell and House Speaker Paul Ryan, urging them to avoid a lame duck session lest they give President Obama one final opportunity “to enact his agenda of progressive social engineering programs and job-killing economic policies.” They observe correctly that in such a session legislators who have been defeated, or are retiring, are “no longer accountable to the voters for their votes, [and] any actions taken which require their votes are essentially undemocratic.”
Mr. Meese and his friends make a persuasive case. The pressure on House and Senate leaders will be enormous. Republicans do not always enjoy a reputation for standing fast under pressure, but this year they must find the courage. The stakes are exceedingly high.